Ted Cruz’s misleading claim about EPA, puddles and ditches

Ted Cruz says the Environmental Protection Agency has gone overboard in regulating farms by regulating even puddles and ditches.

“They’re hurting from a federal government whose policies have been making it harder and harder for farmers to survive. They’re hurting from an EPA who is imposing massive burdens on farms,” Cruz said in a March 29 CNN town hall in Milwaukee. “For example, the Waters of the United States Rule where the EPA has tried to define a puddle or a drainage ditch on your farm to be navigable waters and thus subject to massive environmental regulations.”

Are puddles and drainage ditches regulated by the EPA? We’ll wade through the research to find out. A Cruz spokesman did not answer our questions for this fact-check.

What a water rule said about puddles

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The Clean Water Act passed in 1972 after high-profile disasters and pollution problems, including the Cuyahoga River fire in Ohio and fish kills at Florida’s Lake Thonotosassa in 1969.

The goal of the act was to regulate discharges into water, but for years industry groups and environmental advocates debated which bodies of water should be included.

U.S. Supreme Court rulings in 2001 and 2006 created uncertainty about the law’s reach. In May 2015, the EPA announced a new rule intended to clarify which bodies of water fall under the act. But within months it was put on hold nationwide pending litigation and remained on hold as of the writing of this fact-check — a key point that Cruz omitted. (Florida was among the states that joined the litigation.)

The crux of the rule wasn’t the size of the bodies of water but whether a body of water could carry pollution into other larger waters. The EPA wants to regulate tributaries, ponds, streams and wetlands to prevent businesses, farms or other entities from dumping waste into the water.

Before the rule was finalized, the EPA invited public comment and the regulation ofpuddles became a talking point for conservatives and business advocates who bashed the rule as federal overreach. To clear up matters, the final rule explicitly addressed the question of puddles:

“The proposed rule did not explicitly exclude puddles because the agencies have never considered puddles to meet the minimum standard for being a ‘water of the United States,’ and it is an inexact term. A puddle is commonly considered a very small, shallow, and highly transitory pool of water that forms on pavement or uplands during or immediately after a rainstorm or similar precipitation event. However, numerous commenters asked that the agencies expressly exclude them in a rule. The final rule does so.”

The American Farm Bureau Federation has argued that the rule language was so broad that it could ultimately include something not much larger than a puddle. Spokesman William Rodger says that puddles could be classified as “vernal pools” or “wetlands” and then fall under the EPA’s jurisdiction.

“We stand by our assertion that puddles — as commonly understood by the average person — can be regulated under the Waters of the United States rule,” he said in response to our questions about Cruz’s statement

But multiple environmental experts have told PolitiFact Florida that they were skeptical that the EPA would end up regulating puddles.

“It is an absurd assertion,” William L. Andreen, University of Alabama law professor, told PolitiFact Florida in October when we fact-checked a similar claim by U.S. Sen. Marco Rubio. “There are no cases on point because the agencies have never asserted jurisdiction in such fantastical situations.”

What the water rule said about ditches

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The EPA had previously interpreted the Clean Water Act to include jurisdiction over ditches but sought to provide clarity with the new rule, which also contained the puddle exclusion. The rule does not regulate most ditches, according to the EPA.

“The rule continues the current policy of regulating ditches that are constructed in tributaries or are relocated tributaries or, in certain circumstances drain wetlands, or that science clearly demonstrates are functioning as a tributary. These jurisdictional waters affect the chemical, physical, and biological integrity of downstream waters. The rule further reduces existing confusion and inconsistency regarding the regulation of ditches by explicitly excluding certain categories of ditches, such as ditches that flow only after precipitation.”

Farmers feared that ditches that flow only during or after a rain would be classified in a way that would put them under enforcement.

U.S. Rep. Dave Loebsack, D-Iowa, raised that concern in a March 22 congressional hearing.

EPA Administrator Gina McCarthy said that even if it rains hard and looks like there are streams everywhere, those don’t count, she said.

“It only has to be something that is constructed or natural that really can impact the downstream water. After that, there’s no connection,” McCarthy said.

The EPA wrote in a response to comments about ditches: “The agencies do not intend to increase the number of ditches that are jurisdictional. In fact, by clarifying and expanding the specific exclusions for ditches, the agencies anticipate that more ditches will be clearly excluded in comparison to previous regulations and guidance related to waters of the U.S.”

Our ruling

Cruz said, “The EPA has tried to define a puddle or a drainage ditch on your farm to be navigable waters and thus subject to massive environmental regulations.”

The EPA’s water rule specifically excludes puddles. It only applies to ditches that are constructed out of streams or ditches that function like streams and could carry pollution to downstream waters.

Cruz omits that the water rule was put on hold by the courts in 2015 pending litigation.

We rate this claim Mostly False.

PolitiFact Florida

The statement: "The EPA has tried to define a puddle or a drainage ditch on your farm to be navigable waters and thus subject to massive environmental regulations."

The ruling: The EPA’s water rule specifically excludes puddles. It only applies to ditches that are constructed out of streams or ditches that function like streams and could carry pollution to downstream waters. Cruz omits that the water rule was put on hold by the courts in 2015 pending litigation.

We rate this claim: Mostly False.

Politifact Florida is a partnership between The Tampa Bay Times and the Miami Herald to check out truth in politics.